BETWEEN:

(the "Company")

AND

(The "Union")

SOLE ARBITRATOR: Professor Bora Laskin, Q.C.

A hearing in this matter was held on July 6, 1964 and August 5, 1964.

The grievance which is the subject of this arbitration concerns the refusal of the Company to permit F.R. Day to displace a foreman, one J. Kitza, in the calling and sorting section of the Toronto Express Terminals. On September 27, 1962, Day, who was then working as a caller, was displaced by a senior employee. No question is raised as to the propriety of this displacement, but as a result thereof Day invoked article 13.3 of the governing collective agreement 5.1, and sought to "bump" Kitza. This article, so far as material, provides that "an employee whose position is abolished or who is displaced from his permanent position may displace a junior employee in his own seniority group for whose position he is qualified within his own area". There are alternative bumping rights given by Article 13.3 but they are not germane to the present case because Day did not seek to avail himself of them. He has stood by the prime claim to a foreman’s job on the ground of seniority, which he admittedly has, and on the ground of qualifications which he asserts he has but which the Company denies.

It is conceded that the foreman’s job held by Kitza is within the ambit of the collective agreement and hence is subject to its seniority provisions. The question before me depends essentially on an appraisal of the duties of Kitza’s job and on an evaluation of Day’s experience and capabilities in the light of such duties. The hearing of this grievance on July 6, 1964 was adjourned to August 5 to enable the parties to bring first-hand evidence on the foregoing matters so as to provide me with a factual basis for a conclusion on the merits of the grievance. I had the advantage, at the close of the evidence which was tendered, to visit the work area involved in the dispute and to view the operations which came within the foreman’s supervisory functions. Before turning to an examination of the evidence there are some general observations that I should make and there are a number of arguments that I should like to clear out.

Although this case relates to a job within the bargaining unit, the job is nonetheless one which transcends merely physical or clerical operations. Because it is a supervisory or managerial job involving exercise of judgement in the deployment of men working under the foremen’s direction, an arbitrator, empowered as I am to direct the employer to bow to a grievor’s claim, must be alert to the difficulty of measuring the managerial aspects of the position in question. The Arbitrator’s function is never an easy one in job claims based on asserted qualifications, but it is undeniable that he can proceed with more confidence in his own judgement on such an issue where the substance of the disputed job is a matter of observable physical or clerical operations than where the substance is in the intangible area of discretion or planning or deployment. The collective agreement herein makes it a requirement of the exercise of bumping rights that the senior man be "qualified", and I construe this to mean (in line with what I believe to be the consensus on this matter) that the claimant must be able to do the work without any right to training or a trial period, albeit with a right to know what the duties of the job are. I should point out here that in my opinion the Company, in answering a Brotherhood argument, was correct in stating that the provision for demonstrating one’s qualifications, found in article 12.16, applies only to a bid for a bulletined position, and there is no similar provision found in article 13 respecting exercise of seniority on displacement of staff. I note that article 13.6 deals with a situation where a union employee fails to show the necessary qualifications on a job into which he has bumped, but this does not mean that the Company is obliged to give any senior claimant the right to go on the job which he claims. It can decide, as the Company has, in the case before me, that it will not permit the bumping because of its view that the claimant is not qualified. It then takes the risk or having its opinion reviewed in the grievance procedure and, ultimately, through arbitration if the Brotherhood decides to contest the matter to that point.

Day entered the Company’s employ at the Toronto express terminal on September 23, 1947 and has worked there continuously to date. He has been porter, tractor operator, motorman, scaleman, mechanical helper, labeller and caller during his years of service. Of these classifications he has been most often porter and caller; and at the time he was displaced and laid claim to Kitza’s job he was a caller, as already stated. In November, 1951, Day applied for, and was assigned to a position as assistant foreman on the rollers which he filled satisfactorily until the latter part of April, 1953. The Company characterized the assistant foreman assignment as temporary but it was so only because that position (and apparently others as well) was reclassified to a foreman’s job, and Day did not have the seniority to bid on it or, to put it another way, he was not the senior claimant and did not therefore press any claim. In 1961 he covered for an assistant foreman for a two week vacation period in the heavy scale section. He was the senior man in the area, and Company evidence was that it was normal to call on the senior man to cover a supervisory position in vacation periods. Although it was indicated by a Company witness that Day did not perform very satisfactorily during the two week span, the rebuttal evidence was much more convincing, and I reject any suggestion that Day’s supervisory work was faulty. The assignment in late 1951 to early 1953 and the two week employment in 1961 represent the only supervisory experience that Day has had since his employment with the Company.

Apart from an occasion in July, 1962 to which reference will be made below, Day has never bid for a supervisory job although concededly, there have been opportunities ever since July, 1962, to bid in on assistant foremen positions. I accept Day’s explanation that he had refrained from so bidding because, as the facts show, a caller’s pay is above that of an assistant foreman, and he would have had to take a cut. Although it appears that on one occasion he bid of a caller’s job to take a lower-rated one, this was in order to get overtime benefit on another shift.

The July, 1962, incident concerned an application by Day for a bulletined foreman’s job on the front platform. He was senior man and his application was discussed with the assistant terminal agent Hogan and with acting terminal agent Faunt. Day was told that his experience fell short of qualifying him for the job and that it would be better if he groomed himself by applying for an assistant foreman’s position. There is a dispute as to Day’s response. Hogan testified that Day agreed or appeared to agree that it would be wise to gain some supervisory experience but Day testified that he pressed his claim and asserted at the time that he did have the necessary qualifications. He filed a grievance which was dropped because a man senior to Day returned to service and asserted his prior claim. This man was awarded the position but was found to be unfit after less than a month in the job and was removed in favour of a former junior incumbent. The job was not rebulletined when the disqualification occurred but the disqualified man grieved and later dropped the case. In the meantime, Day himself was bumped and he chose to claim Kitza’s job rather than re-open his claim to the other foreman job for which he had applied in July.

I do not think any conclusion adverse to Day can be drawn from the sequence events attending the bulletined foreman’s job. The matter still rests where it seems to have rested at the time Hogan and Faunt sought to dissuade Day from pressing his claim, save that here we are concerned with a claim to a job by bumping rather than a claim to an open job. However, the principal ingredient, that of qualification, is the same, and, hence, I turn to the evidence on what Kitza’s job involved.

It was a job on the 3:30 p.m. to 12 midnight shift and concerned the direction and deployment of men in the sorting area so as to ensure that express traffic brought in by trucks is moved efficiently through the feeder lines, consisting of rollers and conveyors, and is sorted accurately for dispatch and loading on trains. There are two large feeder belts which bring the traffic into the sorting area, and there men work at sorting tables and handle the traffic by directing it to the proper lines which carry it down to where callers call off the information on the shipments to a tape for billing purposes. The terminal agent at the time stated that the foreman’s job in this area was very important since it involved keeping the belts moving without interruption, and this required the moving around of the work force to various positions from time to time to avoid congestion at any one point.

There is some routine clerical work involved in the job but not much was made of this by Company witnesses. The foreman must, of course, know the train geography and be able to handle emergencies but, in the main, he must in assigning duties know how and when to direct and redirect his work force. Day was denied the right to bump into Kitza’s job because the then terminal agent, who stated that he had been able to observe the grievor over a period of some ten years, did not think that he had the necessary leadership ability to deploy and direct the work force. This was also the view taken by Hogan to whom the bumping request first came, and he communicated it to the then terminal agent. There was no discussion with the grievor on the matter now in issue, but since there had been a discussion a little earlier on the bulletined foreman position, Hogan must have considered this matter to stand in no different position. There is no evidence that Day requested an interview on his bumping claim. When his claim was rejected by a letter of October 1, 1962 he was advised to exercise his bumping right against some other junior employee.

If this were a case of a claim to an assistant foreman’s position I would have no hesitation in directing that Day be put on the job. I am, however, not satisfied that I should make such a direction in respect of a foreman’s position in this case when it means a finding of immediate qualification. I do not conceive my powers to extend to ordering the Company to give Day an opportunity to demonstrate his fitness, as I might if this were a claim to a bulletined position. This being so, I am left to decide whether on the evidence and on my appreciation of what the job involves I would be justified in holding that Day was wrongly denied Kitza’s job. I do not believe I would be, and hence the grievance fails. I may say that I am not unmindful of the fact that a porter foreman relieves on the job on Saturdays and of the Brotherhood’s assertion that porter is the lowest classification in the shed. Traffic is, however, light on Saturday as compared with the week days and there is less urgency, and, of course, I cannot make a direction based on the irregular rather than the regular flow of work with which a foreman has to contend.

Dated at Toronto this 17th day of August, 1964.